Stone v. Bassett

• Decision Date: 01 January 1860
• Citation: 4 Minn. 215
• Parties: JESSE M. STONE vs. JOHN BASSETT.
• Court: Minnesota Supreme Court

4 Minn. 215

(4 Minn. R. p. 298.)

JESSE M. STONE vs. JOHN BASSETT.

Supreme Court of Minnesota.

Appeal from judgment of district court, Ramsey County.

Points and authorities for appellant: —

1. The complaint does not state facts sufficient to constitute a cause of action. Minn. Stat. 649, § 2.

2. The complaint does not state facts sufficient to give jurisdiction to a justice of the peace. Minn. Stat. 651, § 12; 12 U. S. Dig. 456, §§ 14 and 15; People v. Rickert, 8 Cow. 226; 2 U. S. Dig. 432, §§ 75, 119, 157, 177; 18 Ala. 600.

3. A justice of the peace has not jurisdiction of an action for the recovery of the possession of real estate from a mortgagor who continues to retain the same, after a sale under a judgment of foreclosure in favor of the mortgagee. Minn. Stat. 649, 651, §§ 2 and 12; 9 U. S. Dig. 249, § 18; Caswell v. Ward, 2 Doug. (Mich.) 374 to 377; Barton v. Osborn, 6 Blackf. 145; Blount v. Winright, 7 Mo. 50; Commonwealth v. Dudley, 10 Mass. 403.

4. That the mortgagor, or any person claiming under him, is entitled to retain possession of mortgaged premises for one year after sale, under a judgment of foreclosure of mortgage, executed in 1857, by virtue of the act of July 29, 1858, entitled, "An act to regulate the foreclosure of real estate," by paying interest on the purchase money at the rate of twelve per cent. per annum. Minn. Stat. 646, §§ 1, 2, 3, or 21, 22, 23; Sturges v. Crowninshield, 4 Wheat. 200; Bronson v. Kinzie; 1 How. 311, dissenting opinion of Judge McLean.

5. That the interest required to be paid by the mortgagor, or other person claiming under him, under the act of July 29, 1858, entitled, "An act to regulate the foreclosure of real estate," in order to retain possession of the mortgaged premises, is not payable in advance for the entire year allowed for redemption, but may be paid as the same accrues, from day to day, or month to month, at the option of the party claiming the possession.

6. That the mortgagor, or any one claiming under him, has the right to redeem the mortgaged premises within one year from the date of the sale thereof, under a judgment of foreclosure, upon paying to the purchaser the amount of his bid and interest thereon, at the rate of twelve per cent. per annum, from the day of sale to the date of such redemption.

7. That the contract of purchase under the decree of foreclosure and sale is a new and independent contract, having no connection whatever with the original contract between the mortgagor and mortgagee; the presumption of law being, that the mortgage is satisfied by the sale of the mortgaged premises.

8. That an act of the legislature giving or extending the right of redemption of mortgaged premises, on which a mortgage exists at the date of its passage, if enacted prior to the sale, whether by advertisement or under a decree of foreclosure, does not impair or in any wise affect the contract between the parties to such mortgage, as not only is the mortgagee not presumed to become the purchaser, but his right to do so is controlled by the statute or decree, and if he does purchase, he does so as a stranger, without reference to the former contract, and such purchase is governed by the law as it exists at the date of such sale. Smith Com. §§ 260, 254.

Points and authorities for respondent: —

1. The justice of the peace had jurisdiction of the cause by virtue of section 12, p. 651, of Comp. Stat.

2. The law of July 29, 1858, upon which the appellant relies, is unconstitutional and impairs the obligation of contracts. Bronson v. Kinzie, 1 How. 311.

3. If said law is valid and constitutional, still the original defendant, Stone, could only have retained possession of the premises upon payment of one year's interest in advance. Statute of July 29, 1858, above cited.

D. Cooper, for appellants.

M. E. Ames, for respondent.

EMMETT, C. J.

On the 5th day of February, 1857, the defendant and wife gave a mortgage to the plaintiff, on certain real property in Ramsey County, to secure the payment of $2,000 in one year, with interest at the rate of two per cent. per month until paid. On the 7th day of August, 1858, defendant having failed to pay, the plaintiff commenced an action in the district court to foreclose the mortgage, and such proceedings were had therein that the court, on the 5th day of May, 1859, ordered the mortgaged property, or so much thereof as might be sufficient, to be sold by the sheriff to satisfy the amount due, giving to either party the right to purchase at the sale, and ordering that the sheriff make a deed to the purchaser, and that, on the production of such deed, he be let into the possession; and, also, that the defendant and wife, and all claiming through or under them, be barred of all equity of redemption. In pursuance of this order, the sheriff, proceeding as upon ordinary execution, sold all of the mortgaged premises to the plaintiff on the 15th day of July, 1859, and on the same day executed a deed to him of the property purchased, after the usual form of sheriff's deeds. Afterwards, on the 30th day of July, 1859, the plaintiff produced this deed to the defendant, and demanded possession of the premises; but the defendant refused to surrender the possession. It further appears that the defendant and wife, just prior to the sale by the sheriff, had conveyed all of the mortgaged premises to one J. Janes Herr, and, at the time of the plaintiff's demand of possession, the defendant was claiming to hold, as the tenant of said Herr, and had, as such tenant and as agent for Herr, on the 1st day of August, 1859, tendered to the plaintiff the sum of seventy-five dollars, as the interest on the sum for which the property was sold, at the rate of twelve per cent. per annum, for the term of three months from the day of the sale. This tender of interest, the plaintiff refused to accept, and, on the 23d of August, 1859, commenced the present action, before a justice of the peace of the county, to recover possession of the premises. The justice gave judgment for the plaintiff, and awarded restitution. An appeal was taken to the district court, where a similar judgment was rendered, and the defendant then appealed to this court. He insists that, under the statute of July 29, 1858, entitled, "An act to regulate the foreclosure of real estate," he might retain possession for one year after the sale, by paying the interest on the purchase money, at the rate of twelve per cent. per annum, and that his tender of three months' interest was sufficient for the time, because, as he claims, the statute does not require the interest for the whole year to be paid in advance. And he makes a further point (not made in the court below), that a justice of the peace has not jurisdiction of an action to recover possession of real property against a mortgagor who holds over after a sale under a judgment of foreclosure. On the other hand, the plaintiff contends that the statute of July 29, 1858, cannot be applied to this sale without impairing the obligation of the mortgage contract, which was made prior to the passage of the law, and that in any event, the mortgagor could not retain possession except by paying one year's interest in advance.

In the case of Grimes v. Bryne, 2 Minn. [89], where it was insisted that the exemption law of August 12, 1858, could not be applied to contracts made prior to its enactment, without impairing the obligation of such contract, this court held, that although the law exempted property not exempt from execution at the time the contract was made, yet it affected the remedy only, and not in such a manner as to impair the obligation of the contract. That the legislature has control of the remedy, and the question for the court in such cases is not whether the power exists and can be exercised, but whether the exercise of it in any particular case amounts to an abuse of that power; but that no adjudicated case can be authority for another, unless the facts are identical. Let us, then, inquire whether, by the passage of the act of July 29, 1858, the legislature abused the power vested in it to control the remedy, and whether the act can be applied to contracts made prior to its enactment, without a violation of the state or federal constitution. This inquiry involves an examination of the practice in our courts, and of the remedies in force at the time this mortgage was made.

For the first few years of our territorial existence, our district courts exercised their equity powers according to the usual chancery practice; and during that time the judicial remedy on mortgages was by bill in chancery for a strict foreclosure, or to have the property sold, and the proceeds applied in satisfaction of the mortgage. But even when a strict foreclosure was sought, the statute expressly recognized the power of the court to order the mortgaged property to be sold. The legislature, however, by an act approved May 5, 1853, abolished the court of chancery as a distinct tribunal, and also all distinctions then existing between the practice and proceedings at law and in equity, and expressly directed that all equity and chancery jurisdiction should thereafter be exercised, and that all suits, applications, and proceedings, then enforced by chancery jurisdiction, including the foreclosure and satisfaction of mortgages, should be commenced, prosecuted, and conducted, to a final decision and judgment, by the process, pleading, trial, and proceedings, prescribed in civil actions. This act, though it took from the courts none of their equity powers, yet, in effect, repealed all statutes relating to the mode of practice and proceedings in chancery, and prescribed but one form of action for the enforcement or protection of private rights, or the redress of private wrongs, whatever might be the nature of the action. The statutes concerning civil actions, and regulating the practice and proceedings therein, so far as they can be made to...